Keeping up to date

The legislation adds into our domestic legislation certain provisions of EU discrimination law that would otherwise have fallen away at the end of 2023 due to the Brexit provisions.

Good news! That means everything you knew about discrimination before 01 January is largely the same! This is with one exception – the definition of what classifies as a ‘disability’. There are a few more, but you’ll have to come to our training on 06 February to discuss those (book now!).

Defining disability

Defining what amounts to a disability is obviously important – if a claimant is not disabled for the purposes of the Equality Act 2010 then they won’t be able to bring a successful disability discrimination claim. So what’s changing?

In addition to the usual test, the claimant will have to show that they are not able to “participate fully and effectively in working life on an equal basis with other workers who are not disabled”. In principle, this is an additional burden on the claimant who needs to show not only that their condition affects their normal day-to-day activities outside of work, but also now within work.

‘Rolled-up’ holiday pay calculations – this will be permitted for those working irregular hours from 01 January 2024. If you want to roll up holiday pay for individuals working irregular hours (you don’t have to!) you will be able to uplift their hourly pay by 12.07% to take account for their holiday.

An example – an employee has worked 20 hours in one pay period (such as a month) at a rate of £12 per hour. You want to include payment for holiday accrued during that period (rolling up their holiday). From 01 January 2024, you can pay them £268.97 for that pay period (which includes an uplift of 12.07% on the £240 they would have otherwise been due).

First four weeks’ holiday pay – from 01 January 2024, holiday pay for the first four weeks of holiday taken by workers and employees with variable pay must be calculated to include overtime, commission, and payments for length of service, seniority or professional qualifications. 

Remaining holiday pay – any holiday pay in excess of four weeks will not legally need to include the variable elements of pay (such as commission and overtime). Of course, you can choose to include variable elements for all holiday pay calculations if you want to avoid the admin burden of splitting it out.

Case law – tribunal decisions already meant that holiday pay should be calculated in accordance with what this new law requires, but this is the first time we’ve seen it set out in legislation. Many employers have, until now, taken a view as to whether to calculate holiday pay in this way.

Penalties – those who ignore the law from 01 January 2024 can expect potential claims for unlawful deductions from wages. These claims can go back as far as two years.

Background

The claimant (and his colleagues) were not consulted about redundancy proposals. The employer started their processes with pooling and scoring. The claimant’s dismissal was unfair due to the lack of early consultation about the redundancy proposals (amongst other reasons).

Practical takeaway

Start early – this case is a reminder that you should start consultation at an early stage, ensuring enough information is being provided and enough time is given for employees to respond (and for those responses to be considered carefully).

Correcting the past – interestingly, the EAT held that the employer’s appeal (held at the claimant’s request) could not correct the lack of consultation which should have happened with the workforce at a much earlier stage.

Purpose of consultation – the case again reminded that consultation should be all about avoiding dismissals or reducing the impact of redundancies. The lack of early consultation meant this was not possible, therefore making the process unfair.

These new laws (including the rolled-up holiday pay changes) will likely come into force on 01 January 2024. Here’s what you need to know:

Rolled-up holiday pay

Rolling up holiday pay (12.07% of pay) will be lawful for part-year workers and individuals working irregular hours.

What needs to be included in holiday pay

Holiday pay must include commission and other payments (such as overtime payments). This means holiday pay will become more expensive for those not currently including those elements.

Record-keeping requirements

Additional working-time record-keeping requirements will be removed. They currently state that working hours and rest records must be kept for all – even those who work regular hours.

TUPE consultation

You’ll be able to consult with employees directly rather than through representatives when there is a small TUPE transfer (fewer than 10 employees), or the business undergoing any size of TUPE transfer has fewer than 50 employees.

EU case law

EU case law is being enshrined into UK law so that:

• All statutory leave can be carried over to the following year if the reason the employee didn’t take it was because they were on family-related leave
• Four weeks’ leave (the statutory regulation 13 leave) can be carried over for up to 18 months where the worker can’t take it due to sickness or because they’ve not been given the opportunity to take it (or haven’t been reminded that any untaken leave will be lost).

Video – Stefan Mars (Head of Legal) has recorded a 30-minute update summarising all of the new laws coming into force and how to deal with them practically – available to access here later this week.

Summary – we’re producing a one-page summary as a reference tool to remind you about the changes – you’ll receive an email to download directly.

Diagnostic – we’re producing a diagnostic tool so you can work out whether the change in holiday laws will affect you – you’ll receive an email to access the tool.

Documents – we’re updating our documents to ensure the changes are all in place on the date of the legal change. If you subscribe to Intelligent Employment you’ll receive notification by email. If you don’t currently access the service and want help with the changes, get in touch here.

Employees already have a right not to suffer sexual harassment at work. This Act introduces a proactive duty on employers to take reasonable steps to prevent it from happening in the first place. What will this mean in practice?

What are ‘reasonable steps’

We’ll need a Statutory Code of Practice from the EHRC for guidance on what constitutes ‘reasonable steps’ but it’s safe to assume that training and appropriate policies and reporting procedures will be high on the list.

Tribunals are already keen to call out ‘tick box’ and ‘stale’ training in this area, so ensuring regular, high-quality training is paramount. We can help – get in touch.

Compensation uplift

A breach of this new duty won’t give rise to separate claims, but, it will give tribunals the power to apply an uplift of up to 25% on any compensation awarded if it finds an employee has been sexually harassed at work and the employer has not taken reasonable steps to prevent it from happening.

Compensation for sexual harassment claims is uncapped so this could have a significant financial impact.

No third-party harassment

The Act was expected to introduce a duty on employers to protect employees from third-party harassment (by customers and clients, for example) but this has been removed and will not come into force.

Timescales

The Act is expected to come into force in 12 months.

Creating greater awareness, education and understanding around neurodiverse conditions will help foster more inclusive practices and help your managers support individuals appropriately – and avoid litigation. Here’s what you need to be aware of:

Training – the importance of educating managers and teams on neurodiverse conditions was highlighted in this case where an employee was successful in claiming disability-related harassment. Comments were made by the appeal officer accusing her of deliberately “masking” her autism – masking symptoms is a common practice amongst autistic individuals.

Medical support – the above case also highlighted the importance of obtaining occupational health or medical guidance on an individual’s neurodiverse condition. In this instance, it would have provided the employer with a clearer picture of the likelihood of recurring behaviour related to her condition and the risks associated with continuing her employment (she worked in a care setting with vulnerable children).

Reason for conduct – this case shows that a tribunal was able to conclude that the effects of an individual’s disability (dyslexia and Asperger’s Syndrome) did not play any part in the conduct giving rise to a disciplinary process. The individual had been aggressive and disruptive to colleagues and argued this was a result of his neurodiverse condition. The tribunal disagreed and said it was a result of a “short temper” rather than his disability.

Hidden conditions – as discussed earlier in this series, many neurodiverse conditions are hidden or remain undiagnosed. Carefully understanding the root cause and reasons behind any performance or conduct issues needs to be approached responsibly to reduce potential discrimination risks and provide the necessary support.

Individual needs will be just that, individual. Supporting neurodiversity won’t be ‘one-size-fits-all’. Here are some of our suggestions on changes to consider to support neurodiverse colleagues:

Inclusive culture – introducing a policy championing neurodiversity is a great way to promote neuro-inclusion, encourage open conversations, and raise awareness of the support you have available. Small practical steps such as providing agendas and follow-up emails/actions for all meetings can help neurodiverse individuals process information at their own pace.

Support plans – if an individual shares that they have a neurodiverse condition, discuss with them whether it’s appropriate to obtain expert medical opinion to help build a personalised plan supporting their specific needs.

Reduce sensory overload – audit your workplace for potential triggers; noise, lighting, background colours (to name a few) and look at how you can address them wholesale to avoid singling out neurodiverse individuals (and creating potential discrimination risks).

Flexible working – discuss with the individual what type of work, tasks and routines might work best for them and help them manage their condition. Discuss varying schedules and flexible working arrangements (where possible) to help set them up for success. Remember that needs may develop over time so review regularly and be open to change.

Mentoring – consider whether individuals may want or be open to coaching or mentoring for any personal development areas they’d like help with (such as organisation or time management).

Notice – if you have the contractual right you could place the individual on garden leave or pay them in lieu of notice. Alternatively, you could ask them to serve out their notice.

Redundancy pay – this is based on the individual’s length of service on the last day of their employment (the government calculator is a useful tool). Don’t forget that if you have a redundancy policy it may require you to pay amounts greater than the statutory redundancy payment.

Holiday – employees are entitled to holiday pay for accrued untaken leave when they depart. This can be paid as a lump sum or with appropriate notice you can require them to use their remaining holiday during their notice period.

Outplacement – a great way of reducing the possibility of litigation and creating a positive end to employment. The individual secures CV writing skills, support with job search, coaching and interview skills training. Get in touch if you’d like to find out more.